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'Not a Victory for Smokers'

Germany's high court has declared that smoking bans in Berlin and Baden-Württemberg threatened the owners of small corner bars with financial collapse. The bar owners have won -- for now. But the debate over the German right to smoke smolders on.

The ongoing effort to shape German anti-smoking laws that satisfy judges, lawyers and lawmakers -- as well as non-smokers -- stumbled again on Wednesday, when a constitutional court struck down parts of the bans in two German states. Berlin and Baden-Württemberg must now let owners of small corner bars decide for themselves whether customers can smoke or not. The verdict sent a shock wave through the German legal community, because it implied that almost every state's ban needs rewriting.

The most complete ban, in Bavaria, may now be a model for state laws across Germany. The laws in Berlin and Baden-Württemberg failed to hold up because they made exceptions: They banned smoking in restaurants and bars, except where the owners could build non-smoking sections. Owners of very small bars had no room for non-smoking sections. A group of them sued, saying they would have to break the law or close their doors. On Wednesday the German constitutional court agreed, saying the exceptions -- not the smoking bans -- represented an unreasonable burden on the rights of business owners.

German papers are predicting legal chaos throughout the land, with some commentators wondering -- again -- whether the government should regulate smoking at all.

The Financial Times Deutschland writes:

"The court's verdict has changed nothing about the absurd laws to 'protect non-smokers' in Germany. Instead, the exceptions are now even more absurd: Until the states reconsider their unconstitutional laws, owners of one-room bars can declare themselves havens for smokers, as long as the bars are smaller than 75 square meters (about 800 square feet) and serve no self-prepared food. Discotheques can also now build non-smoking rooms -- but only as long as there are no dancing in those rooms."

"Whether the law should protect citizens against passive smoking at all is not a legal question, but a political one. German politicians have come up with the wrong answer. Instead of a frenzy of regulation it would be much better to leave this question up to the owners and their guests. Every bar owner can decide whether he wants to run a smoking or non-smoking establishment. Then the guests can decide whether they want to enjoy their beer and schnitzel with cigarette smoke, or without it."

The left-leaning Süddeutsche Zeitung writes:

"The state parliaments … may now pass 'strict, exception-free smoking bans in bars and restaurants.' But when they decide to loosen the laws in certain cases and allow exceptions, they need to pay attention to the economic burdens placed on owners who can't fulfil those conditions -- like non-smoking rooms. So far so good. But the verdict upholds the status quo without addressing whether a general and absolute ban on smoking in restaurants and bars is constitutional."

"Germans can now assume it is constitutional -- but no one knows why the court has implicitly approved it. A general and absolute ban was not at issue in this lawsuit. The court's latest piece of jurisprudence is therefore as superficial as it is irritating."

The center-right Frankfurter Allgemeine Zeitung writes:

"The verdict is not a victory for smokers. It's a temporary victory for the owners of small bars. Because the court has now emphasized the goal of protecting everyone -- smokers and non-smokers -- from passive smoking. According to a majority of the judges in the constitutional court, the lawmakers (in Berlin and Baden-Württemberg) only made a mistake in their methods."

"The supposedly regulation-happy, freedom-stifling system of German politics has, in this instance, proved to be flexible. But the majority of judges who in this case stood up for flexibility and freedom are also pointing the way to a more paternalistic state."

The right-leaning daily Die Welt writes:

"We can't overlook the fact that the court has given lawmakers a lot of leeway in the field of 'health politics.' If protection of the public health is generally defined as a common good, worth achieving at the expense of some civil rights and some (bar owners') economic existence, then a very wide door has been blown open. A strict politics of paternalism can enter through this door, grounded on supposedly safe, always abundantly available scientific findings and apparently clear guidelines. But the air for an open society would then grow thin."

The left-leaning daily Die Tageszeitung argues:

"Now it seems that the clear law in Bavaria, along with a law in the Saarland, is the closest expression of the German constitution."

"(But) all state parliaments should have the courage to regulate clean air. Even this latest case has lost sight of the goal of the laws. If we make exceptions of small corner bars, the old conditions will return. Every gathering would pose a question to non-smokers who can't convince their smoking friends to visit a larger restaurant or bar with a non-smoking section: Do I deal with the smoke, or just keep away?"

"At the center of the debate over clean air in restaurants and bars is a question of freedom. Anyone who wants to smoke can do so in a smoke-free restaurant -- by walking to the door. But a smoky bar or restaurant gives no one the freedom to dissent. That's the difference between smoking and harming oneself through alcohol or French fries, which the government should rather not ban."

-- Michael Scott Moore, 12:30 pm CET